Common-Law Separation and the Family Home

In News by northernlaw

In Ontario, two people are considered common-law partners if they have been continuously living together in a conjugal relationship for at least three years or living together in a relationship of some permanence if they share a child together by birth or adoption.

Common-law spouses have fewer legal rights compared to married spouses upon the breakdown of the relationship. Essentially, there is no regime for property division in a common-law relationship as there is under the Divorce Act for married couples. Absent a signed cohabitation agreement stating otherwise, property brought into the relationship, plus any increase in value, continues to belong solely to the owner. The same applies to debts. Those brought into the relationship will continue to be the sole responsibility of the owner. Assets and debts held jointly between common-law spouses will be shared.

The rules regarding division of property, including the matrimonial home, do not apply to common-law spouses. Put another way, common-law spouses do not have an equal right to live in the family home or the automatic right to equalize their net family property acquired during the relationship. Married spouses can look to Ontario legislation, including the Family Law Act and Divorce Act, for clear direction when equalizing matrimonial property including specific provisions with respect to the matrimonial home regardless of ownership in title to the property.

There is no “matrimonial home” for common-law spouses, instead, the property where the common-law couple resided during their relationship is referred to as the “family home.” The property may be held in both of their names, either as joint tenants or tenants-in-common, or it may be held by one of them alone. If both common-law spouses are registered on title to the family home as joint owners, then they both have an equal right to occupy the property or may enter into a separation agreement to facilitate a spousal buyout.

Upon the breakdown of a common-law relationship, the property will continue to belong to whomever is listed on title. As such, the sole owner of the property may evict the non-owner spouse or sell the home. That being said, family law courts in Ontario have dismissed motions for orders requesting the non-owner spouse to vacate the property, especially where the common-law spouses share a child or where the non-owner has a valid claim for an interest in the property (i.e. a constructive trust).

In Abdulaziz v. El Zahabi, [2022] O.J. No. 2024, Justice MacKinnon reviewed several decisions, where an owner common-law spouse sought an order that the non-owner spouse vacate the property. Many of these decisions involved a constructive trust claim made by the non-owner spouse for their contributions made during the relationship. In Abdulaziz, the court found the non-owner spouse failed to present meritorious claims based on unjust enrichment or constructive trust to the subject property. Nevertheless, the non-owner spouse was not ordered to vacate the property, finding that the balance of convenience favoured her and the children remaining in the home pending its sale.

Contributions made by the non-owner spouse, such as paying a portion of the mortgage, do not automatically give rise to a claim for unjust enrichment because the non-owner spouse likely would have had to pay rent elsewhere. Unjust enrichment occurs when one spouse is enriched at the expense of the other spouse’s actions. A successful claim for unjust enrichment requires the following three elements: (1) one spouse received an enrichment (benefit), (2) the other spouse has been deprived or suffered a loss because of it, and (3) there is no legal basis for the enrichment (i.e. contract). If proven, the successful claimant may receive a monetary award or a constructive trust. A constructive trust is a remedy, which gives the successful claimant an interest in the other spouse’s property. A constructive trust may be ordered, where a monetary award would be insufficient and where there is a causal connection between the non-owner spouse’s contribution and the purchase, preservation, or renovation of the property.

There are different rules that apply to a home that is located on a First Nation reserve. Off-reserve, the division of matrimonial real property is generally governed by the laws of the province or the territory. However, the 1986 Supreme Court of Canada decision, Derrickson v. Derrickson, ruled that because reserve lands fall under federal jurisdiction, certain provincial and territorial laws could not be applied to matrimonial real property on-reserve. As a result, it cannot be divided under a provincial family law statute, but a court can order compensation in lieu of division to prevent inequitable outcomes.

The possession, occupation, and division of value of matrimonial real property on First Nation reserves is governed by the Family Homes on Reserves and Matrimonial Interests or Rights Act. Importantly, the Act applies to both married and common-law spouses with matrimonial real property on First Nation reserves and where at least one spouse or common-law partner is a member of the First Nation or entitled to status under the Indian Act.
28 (1) When a conjugal relationship breaks down, each spouse or common-law partner is entitled, on application made under section 30, to an amount equal to one half of the value, on the valuation date, of the interest or right that is held by at least one of them in or to the family home and to the amounts referred to in subsections (2) and (3). S.C. 2013, c. 20.

Navigating the breakdown of a common-law relationship can be a complex and difficult process. If you have questions about division of property, cohabitation agreements, separation agreements, and other common-law related interests, Northern Law LLP is happy to offer experienced counsel to assist you. Contact us today at (705) 222-0111 or